Moran v. Proskauer Rose LLP et al

Filing 8

ORDER adopting Report and Recommendations re 6 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Dancks's Order and Report- Recommendation (Dkt. No. 6) is ADOPTED in its entirety; and the Court further ORDERS that Plai ntiff's complaint (Dkt. No. 1) is DISMISSED in its entirety without leave to amend; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 7/26/17. (Copy served via regular and certified mail)(ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
THOMAS J. MORAN,
Plaintiff,
vs.

1:17-cv-00423
(MAD/TWD)

PROSKAUER ROSE LLP;
JEROLD D. JACOBSON; and
KEISHA ANN GRACE GRAY,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

THOMAS J. MORAN
500 16th St.
Apt. 203
Watervliet, New York 12189
Plaintiff, pro se
Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff commenced this action pro se on April 17, 2017 against Proskauer Rose LLP
("Proskauer Rose"), Jerold D. Jacobson ("Defendant Jacobson"), and Keisha Ann Grace Gray
("Defendant Gray"). See Dkt. No. 1. In an Order and Report-Recommendation dated May 1,
2017, Magistrate Judge Dancks granted Plaintiff's application to proceed in forma pauperis for
filing purposes only and denied Plaintiff's motion for appointment of counsel. See Dkt. No. 6 at
2, 9. In reviewing the sufficiency of the complaint, Magistrate Judge Dancks concluded that the
Court lacks subject matter jurisdiction over Plaintiff's claims, and therefore, despite Plaintiff's pro
se status, recommended that Plaintiff's complaint be dismissed with prejudice. See id. at 9. On
May 26, 2017, Plaintiff filed objections to Magistrate Judge Dancks's Order and ReportRecommendation. See Dkt. No. 7.

According to the complaint, Proskauer Rose is a global law firm and Defendants Jacobson
and Gray are attorneys with Proskauer Rose. See Dkt. No. 1 at 5. Plaintiff asserts that Proskauer
Rose is counsel for non-party Jewish Board of Family and Children's Services ("JBFCS"),
Plaintiff's former employer. See id. at 5-6. As Magistrate Judge Dancks noted, according to
publicly available documents, Plaintiff filed a complaint with the New York State Division of
Human Rights ("NYSDHR") against JBFCS. See Dkt. No. 6 at 4.
Plaintiff alleges that Defendants Jacobson and Gray appeared at a conference before the
NYSDHR on behalf of JBFCS. See Dkt. No. 1 at 5-6. Plaintiff alleges that, at the time of this
conference, Defendants Jacobson and Gray were not appropriately licensed to practice law in
New York State through the New York State Unified Court System. See id. Plaintiff alleges that
he told two of NYSDHR's employees that "allowing two attorneys with no valid law licenses into
this conference to practice law is fraudulent." Id. at 6.
Moreover, Plaintiff alleges that Defendant Jacobson wrote a "fraudulent" email response
to Plaintiff's NYSDHR complaint since Defendant Jacobson's "law license [was] expired at the
time the [r]esponse was sent." Id. Plaintiff also argues that, because of Defendant Jacobson's
personal relationship with the JBFCS, it is inappropriate for him "to handle the issues of the
Jewish Board." Id. at 7. Furthermore, Plaintiff claims that Defendant Gray "tricked [Maria] Di
Cosimo of Lexis-Nexis into providing Ms. Gray with information that was obtained through Ms.
Di Cosimo's connection with Lexis-Nexis fraudulently." Id. Plaintiff requests $240 million in
total from Defendants and an injunction preventing Defendant Proskauer Rose from "continuing
its practice of allowing attorneys with no law licenses to practice law in the State of New York as
well as the United States." Id. at 8.

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"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2003) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations
omitted). The Second Circuit has opined that the court is obligated to "make reasonable
allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because
they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
However, "[t]he right of self-representation does not exempt a party from compliance with the
relevant rules of procedural and substantive law." Massie v. Ikon Office Solutions, Inc., 381 F.
Supp. 2d 91, 94 (N.D.N.Y. 2005) (quoting Clarke v. Bank of New York, 687 F. Supp. 863, 871
(S.D.N.Y. 1988)).
In reviewing a report and recommendation, a district court "may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §
636(b)(1)(C). When a party makes specific objections to a magistrate judge's report, the district
court engages in de novo review of the issues raised in the objections. See id.; Farid v. Bouey,
554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008). When a party fails to make specific objections, the
court reviews the magistrate judge's report for clear error. See Farid, 554 F. Supp. 2d at 307; see
also Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004). As
mentioned, Plaintiff has submitted objections to the Order and Report-Recommendation. See
Dkt. No. 7.
Federal courts are courts of limited jurisdiction and may not preside over cases absent
subject matter jurisdiction. Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552
(2005). Federal jurisdiction is available only when a "federal question" is presented or when the
plaintiff and the defendant are of diverse citizenship and the amount in controversy exceeds
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$75,000. 28 U.S.C. §§ 1331, 1332. When a court lacks subject matter jurisdiction, dismissal of
the complaint is mandatory. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). Federal courts
"have an independent obligation to determine whether subject-matter jurisdiction exists, even in
the absence of a challenge from any party." Id. (citing Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 583 (1999)).
In order to invoke "federal question" jurisdiction, a plaintiff's claims must arise "under the
Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Here, as Magistrate Judge
Dancks concluded, Plaintiff has failed to allege a claim that arises under the Constitution or laws
of the United States of America. Plaintiff's main allegation surrounds the state bar licensure of
two private attorneys employed by a private limited liability partnership. See Dkt. No. 1 at 5.
There is no federal claim that can be inferred from the facts alleged.
Plaintiff has submitted his allegations on a form that is provided by the Court for pro se
litigants to file civil rights complaints pursuant to 42 U.S.C. § 1983 ("Section 1983"). See id. at 1.
However, there is no indication from Plaintiff's allegations that a Section 1983 claim could be
supported. In his objections, Plaintiff agreed with Magistrate Judge Dancks that the reason he
used a civil rights complaint form was because it was provided to him by the Court. See Dkt. No.
7 at 4.
To state a Section 1983 claim, "a plaintiff must allege (1) 'that some person has deprived
him of a federal right,' and (2) 'that the person who has deprived him of that right acted under
color of state . . . law.'" Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo,
446 U.S. 635, 640 (1980)). Moreover, "[b]ecause the United States Constitution regulates only
the Government, not private parties, a litigant claiming that his constitutional rights have been
violated must first establish that the challenged conduct constitutes 'state action.'" Flagg v.
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Yonkers Sav. & Loan Ass'n, 396 F.3d 178, 187 (2d Cir. 2005) (quoting United States v. Int'l Bhd.
of Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991)). The conduct of a private actor may be
considered state action when the private actor "is a willful participant in joint activity with the
State or its agents." Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)).
Defendants Jacobson and Gray are private attorneys working for a private law firm. See
Dkt. No. 1 at 5. Plaintiff does not allege that Defendants had any affiliation with the State of New
York beyond their licensure, and therefore, they cannot be deemed "state actors" under Section
1983. See Licari v. Voog, 374 Fed. Appx. 230, 231 (2d Cir. 2010) ("[P]rivate attorneys—even if
the attorney was court appointed—are not state actors for the purposes of § 1983 claims.") (citing
Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997)). Furthermore, Proskauer Rose's
registration as a domestic limited liability partnership with the State of New York does not render
it a "state actor."1 See Cranley v. Nat'l Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir. 2003)
(citing S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 543-44 (1987)). Plaintiff
has also failed to allege that Defendants conspired with any state actor to violate his constitutional
rights. Accordingly, Plaintiff has failed to allege a cause of action that provides this Court with
subject matter jurisdiction under 28 U.S.C. § 1331. Plaintiff's objections offer nothing to cure this
defect.
As Magistrate Judge Dancks also found, Plaintiff has failed to establish a basis for
diversity jurisdiction under 28 U.S.C. § 1332. See Dkt. No. 6 at 8. Diversity jurisdiction is only
proper where "all of the adverse parties in a suit [are] completely diverse with regard to

As Magistrate Judge Dancks noted, Proskauer Rose is listed as a domestic registered
limited liability partnership with the New York State Division of Corporations. See Dkt. No. 6 at
8 n.4.
1

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citizenship." E.R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 930 (2d Cir.
1998) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806)). For the purposes of
diversity jurisdiction, the citizenship of limited liability partnerships, like Proskauer Rose, is
determined by the citizenship of all of its members. See Carden v. Arkoma Associates, 494 U.S.
185, 195-96 (1990); Handelsman v. Bedford Vill. Assocs. Ltd. P'ship, 213 F.3d 48, 51-52 (2d Cir.
2000).
Here, the complaint states that Plaintiff lives in Watervliet, New York, and that
Defendants Jacobson and Gray are also citizens of New York. See Dkt. No. 1 at 1-2, 5.
Proskauer Rose's citizenship is determined by the citizenship of each of its members, including
Defendants Jacobson and Gray.2 See id. As such, all parties are citizens of New York, and this
Court lacks diversity jurisdiction over Plaintiff's claims. Accordingly, Plaintiff's complaint is
dismissed.
When a pro se complaint fails to state a cause of action, the court generally "should not
dismiss without granting leave to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (internal quotation and citations omitted). Of course, an opportunity to amend is
not required where "[t]he problem with [the plaintiff's] cause of action is substantive" such that
"better pleading will not cure it." Id. (citation omitted). As Magistrate Judge Dancks found, lack
of subject matter jurisdiction is a substantive defect that cannot be cured by better pleading. See

Defendants Jacobson and Gray are listed as partners on the Proskauer Rose website.
Professionals, Proskauer Rose, http://www.proskauer.com/professionals/ (last visited July 13,
2017).
2

6

Dkt. No. 6 at 9; see also Planck v. Schenectady Cty., No. 1:12-CV-0336, 2012 WL 1977972, *6
(N.D.N.Y. June 1, 2012). As such, Plaintiff's complaint is dismissed with prejudice.3
Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks's Order and Report-Recommendation (Dkt. No.
6) is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED in its entirety without
leave to amend; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: July 26, 2017
Albany, New York

Since the Court is dismissing Plaintiff's complaint with prejudice, the Court will not
address Plaintiff's objection to Magistrate Judge Dancks's denial of Plaintiff's motion for
appointment of counsel.
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